Congress eyes ESA improvements

If you were a visitor from outer space touching down in the United States for the first time, you might think that the animal kingdom was waging war on the human species. You’d see barren wastelands in California’s breadbasket, brought on by a three-inch fish. You’d see small, dilapidated towns in the Northwest where a once industrious, thriving population was brought to its knees by an owl. You would hear rumblings of a chicken-sized bird threatening to steal the livelihoods of thousands of producers of the energy, food and fiber that’s crucial to human survival.

Butterflies, frogs and wolves would appear to be joining forces to bring the demise of the human race’s resource providers. Little would you know that the animal species themselves are completely unaware of their assault.

No, spend enough time in the U.S. and you will find that the animal kingdom’s attack on humanity is not their own doing, but rather the result of laws and regulations put in place by the humans themselves. Forty years ago, President Richard Nixon signed into law the Endangered Species Act (ESA) of 1973. Since then, over 1,500 plant and animal species have been added to the list of “endangered” and “threatened” species within the United States’ borders. Although the resulting restrictions placed on human activity have been enough to ruin entire communities, they have failed at “saving” so-called imperiled species: just two percent of the species placed on the list for protection has ever been deemed recovered.

A recent eye-opening report from a U.S. congressional working group revealed some of the gaping holes in the ESA—and gave their recommendations for improvements. The working group was led by U.S. Representatives Doc Hastings (R-WA) and Cynthia Lummis (R-WY) and consisted of 11 other Republican representatives from across the country. The livestock industry got its licks in: in 2012, Public Lands Council, National Cattlemen’s Beef Association, and property rights attorney and rancher Karen Budd Falen submitted to Congress recommendations for ESA updates.

Many of those recommendations were reflected in the working group’s report.

The ESA affects livestock producers in two direct ways. It puts limits on federal government “actions” that could modify species’ habitat—such as issuing federal permits, funding projects, or granting easements and rights-of-ways.

The ESA also prohibits the “taking” of listed species by any individual, on private or public land. Individuals are subject to criminal penalties not just for killing one of these creatures, but for doing anything that could “significantly impair essential behavioral patterns, including, breeding, spawning, rearing, migrating, feeding or sheltering” of the species. Anybody can sue you with an accusation that you are “taking” or “harming” a threatened or endangered species. It’s crippling for businesses, and an envirolitigator’s paradise.

When environmental “nonprofit” groups sue individuals, they often reap attorneys’ fees from the government when they prevail—sometimes to the tune of $500 per hour. Not only do they profit from filing “citizen suits;” these envirolitigators have a heyday suing the federal government for missing its own ESA deadlines. They clog the system by overloading the U.S.

Fish and Wildlife Service (FWS) and National Marine Fisheries Service (NMFS) with petitions to list hundreds of species at a time, knowing full well that the government won’t be able to respond within the mandatory 90 days. Every time a deadline is missed, a procedural lawsuit may be filed— and attorneys’ fees are once again doled out at taxpayers’ expense.

According to the Government Accountability Office, between 2000 and 2010, the ESA was the single most expensive and litigious statute for the entire Interior Department, costing the taxpayers $22 million in attorneys’ fees and costs (and that’s just for the one de partment).

Several large nonprofit groups are responsible for the bulk of the damage: Center for Biological Diversity (CBD) brought 117 ESA cases before the Department of Justice between 2009 and 2012; WildEarth Guardians (WEG) clocked in second with 55 cases.

These two groups’ propensity for litigation is possibly the reason they were party to massive, behind-closeddoors settlement agreements with the federal government in 2011. Those agreements resulted in hundreds of thousands of dollars going to the two groups, plus an obligation for the FWS to make listing decisions on 250 species over the following six years. Other actions, such as critical habitat designations, are required on 1,053 species. And while the “mega-settlements” slowed CBD and WEG down in terms of ESA litigation, other groups have no such limitation and continue to file lawsuits against the government for missed deadlines. CBD and WEG, meanwhile, keep petitioning to list even more species.

In response to the litigation and settlement problems rampant in ESA dealings, the congressional working group proposed, among other suggestions, to make closed-door settlements transparent to the public; to require state, tribe and local approval of settlements; to require the agencies to make publicly available accurate records of federal funds spent annually for ESA-related litigation, payment of attorneys’ fees, settlements, and consent decrees; and to put a cap on hourly attorneys’ fees paid to litigators.

The infamous greater sage grouse is among the 250 “mega-settlement” species for which a listing deadline has been court-ordered.

The deadline for that decision is September of 2015— hence the mad dash at the Bureau of Land Management and U.S. Forest Service to implement “regulatory mechanisms” and prove to FWS that a listing isn’t necessary. Anyone who has been watching the sage grouse debacle knows that a chronic problem is the lack of adequate science backing up agency decisions. According to the congressional working group report, this lack of sound science is characteristic of most of the mega-settlement species cases. Because of the hard listing deadlines they’re up against, FWS justifies giving short shrift to sound science. And the “science” they use typically points in one direction: list it. So far, over 80 percent of the megasettlement species decisions have been either listings or proposals to list.

When a species is listed, it usually stays that way. According to the congressional working group, the agencies “rarely act to delist or downlist a species, even when they acknowledge the species merits delisting or downlisting…The FWS has taken the position that it is not required to act on delisting of a species unless and until an ‘interested party’ petitions for action and then follows up with a lawsuit.” Who has the time or money for that? Not often is it the kind of person or group that would push for a delisting! Among the congressional working group’s suggestions to deal with this problem is a requirement that the agencies issue actual rules to delist species at the time of the species’ listing—such as numerical goals on population counts. This could be preferable to leaving us all guessing as to when a delisting might be considered merited.

FWS’ habit of deciding to list mega-settlement species does not bode well for human inhabitants of sage grouse country. According to Colorado attorney Kent Holsinger, areas identified as “priority” or “critical” habitat for sage grouse could delay or completely shut down mining, timber, grazing, energy development, and other activities in millions of acres in the interior West. Again, once a species is listed, anybody can sue to stop activities that may be construed to harm it or modify its habitat. According to Holsinger, fines for a “take” could range from $25,000 to $100,000—and you could face a year in jail. In light of a listing, many of your basic ranching activities on public lands are likely to be curtailed or severely modified.

Utilization standards (how much grass you leave) on public land would likely be “insanely high,” according to rancher/attorney Budd Falen. FWS could well put its own terms and conditions on federal grazing permits, adding a whole new layer of regulations, process, and lawsuit materials. Special interest groups will be able to sue to thwart “federal actions” like permit renewals. In other words, it won’t be pretty for the rural West. In its report, the congressional working group offered ways to avoid critical habitat designations where the economic impact would be severe.

Despite the warning signs that a sage grouse listing would tear apart western communities, dogged litigation and “fishy” science seem to be steering the sage grouse ship into dangerous waters. Since 2003, environmental groups have been suing to get ESA protection for the bird. Between 1999 and 2003, environmental groups filed eight petitions to list it. FWS responded with a finding in 2005 that a listing was “not warranted.” Five lawsuits later, FWS has changed its tune: the bird is now “warranted” for listing but “precluded” for now, as listing decisions first have to be made on higher-priority species. The agency is using a 2012 “scientific” report that, according to the congressional working group, “does not include any independent data or analyses, and omits any accounting for the major causes of decline for the sage grouse, including hunting and drought. In addition, individuals who were tasked with peer reviewing the report received lucrative contracts and grants to study the (sage grouse) from the U.S. Geological Service and the FWS, an apparent conflict of interest. Further, the…report omitted important scientific studies and failed to use the most current state and local maps.”

The BLM, too, is using questionable science as it amends land use plans in the name of sage grouse, ostensibly to prevent a listing by FWS. A peer review of the BLM report revealed it “does not represent the ‘best available science;’ imposes ‘one-size-fits-all’ regulatory prescriptions; and includes a number of invalid assumptions, mischaracterization and misrepresentation of sources; omission of existing programs that benefit (sage grouse), and injection of personal opinion over science; contains unachievable measures; and is inconsistent with agency multipleuse regulations.” The BLM report also skims over the main threats to sage grouse: fire and invasive species. Nonetheless, the BLM is proceeding with regulations based in p art on this report, citing the FWS’ “tight time frames” as their excuse. The FWS’ court deadline seems to be BLM’s pass to implement new regulations in a rush, even if the science isn’t all there to back them up.

The congressional working group’s remedy for the puny science: data, including DNA, should be used to support ESA determinations, rather than unpublished reports or professional opinions. Also, data and peer-reviewed studies used to make ESA decisions should be made publicly available—online when possible. They said ESArelated peer reviews that do not comply with the Data Quality Act should be deemed ‘arbitrary and capricious,’ and states, tribes, and local governments should be involved in peer reviews and the sourcing of data.

To summarize the sage grouse situation, the congressional working group report identified it as “a case study of how the current implementation of the ESA through litigation is not working well for either species or people. While states, local governments, and other private landowners have invested significant resources to conserve the (sage grouse) and ensure its population remains healthy, the federal government appears to be reacting to its own ESA settlement deadlines and threats of future litigation, in the meantime basing its decisions on data that has been seriously questioned.”

The congressional working group also included case studies of the lesser prairie chicken, the northern spotted owl, the Pacific salmon and steelhead, the gray wolf, and 374 mussel and aquatic species in the Midwest and Gulf Coast. All of these case studies demonstrated the severe economic damage caused by ESA regulations; the disincentive for landowners to provide a home for endangered species; the failure of FWS to coordinate with state and local governments in most cases; the unrelenting and inappropriate role that litigation almost inevitably plays in ESA decisions; FWS’ disregard for on-theground conservation efforts of local stakeholders in most cases; and the improbability that a delisting will ever occur.

The congressional working group’s numerous recommendations, found at the end of the report, addressed these issues and more. Read them at the “Endangered Species Act Congressional Working Group” link on Rep. Doc Hastings’ or Rep. Cynthia Lummis’ websites. According to Rep. Hastings in a press conference, targeted ESA legislation is expected to be introduced in the House in the next month.

One doesn’t have to be from outer space to wonder at the self-imposed problems we humans have created for ourselves. The fact that some radical groups think they are “benefiting” from stymieing their own race’s means of production is equally flabbergasting. Lucky for them, the ones responsible for feeding and clothing them are not likely to abide it. Producers across America should stand with Reps. Hastings and Lummis and their colleagues in the House. Some pinpointed changes to the ESA could help bring us all back to Earth. — Theodora Dowling, WLJ Correspondent